Court of Appeals Opinions

Format: 07/27/2015
Format: 07/27/2015
In re Domingo W., et al.
W2014-01435-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Walter L. Evans

In this termination of parental rights case, Mother appeals the trial court's findings of incompetency and persistence of conditions as grounds for termination. Mother also appeals the trial court's conclusion that termination was in the children's best interest. We affirm the trial court's findings as to both grounds for termination. We also affirm the trial court's finding that termination is in the best interest of the children. Accordingly, we affirm the termination of Mother's parental rights.

Shelby County Court of Appeals 07/23/15
Robert McCollum, et al. v. Darrell Peters
E2014-02082-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Robert and Kimberly McCollum (Plaintiffs) sued Darrell Peters (Defendant) for damages incurred after a garage he built partially collapsed. Their complaint alleged multiple claims for relief including breach of contract, violations of the Tennessee Consumer Protection Act (the TCPA), various forms of fraud and/or intentional misrepresentation and negligence. Following a bench trial, the court ruled in favor of the Plaintiffs. The court held that, with respect to his construction of the garage, Defendant was guilty of promissory fraud, made fraudulent misrepresentations in violation of the TCPA, and acted recklessly by consciously acting contrary to his representations. The trial court entered judgment awarding Plaintiffs a sum total of $56,103.50 including compensatory damages, punitive damages, and attorney's fees. Defendant appeals. We affirm.

Washington County Court of Appeals 07/23/15
In re Serenity W. M.
E2014-01802-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Joseph M. Ayers

This case involves a dispute regarding the custody of Serenity W.M. (the Child), the minor daughter of Matthew Ryan Martin (Father) and Natasha Amber Nichole Martin (Mother). Shortly after the Child’s birth, a state district court in the Commonwealth of Kentucky entered an order granting temporary custody of the Child to her maternal uncle, Christopher Mayo, and his wife, Natasha Cima (collectively Petitioners). Later, Petitioners filed a petition in the Tennessee trial court seeking (1) enforcement of the Kentucky order and (2) emergency custody of the Child. Following a hearing in Tennessee, the trial court granted the petition and ordered that custody would remain with Petitioners pending further proceedings in Kentucky. Father and Mother appeal. We affirm.

Campbell County Court of Appeals 07/23/15
Jeffery G. Douglas v. Francine C.S., et al.
W2014-02075-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Don R. Ash

The trial court dismissed Appellant's petition for a writ of mandamus. Due to profound deficiencies in Appellant's brief, we dismiss this appeal.

Madison County Court of Appeals 07/23/15
Andrew C. Clarke v. City of Memphis
W2014-00602-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal stems from a public records dispute, pursuant to the Tennessee Public Records Act, Tennessee Code Annotated
§ 10-7-101 et seq., litigated in the Shelby County Chancery Court. The trial court awarded Appellee/Cross-Appellant $3,500.00 in attorneys‘ fees and costs due to the City of Memphis‘ ("the City") failure to timely respond to Appellee/Cross-Appellant‘s open records request. The City appealed concerning the propriety of the award of attorneys‘ fees. Appellee/Cross-Appellant cross-appealed concerning the amount of the fees awarded and additionally prayed for an award of attorneys‘ fees on appeal. Although we conclude that Appellee/Cross-Appellant is entitled to attorneys‘ fees, we modify the amount awarded from $3,500.00 to $2,340.00. Further, we deny Appellee/Cross-Appellant‘s request for attorneys‘ fees on appeal.

Shelby County Court of Appeals 07/23/15
In re Marcell W.
W2014-02004-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

In this parental termination case, Mother appeals the termination of her parental rights to the minor child at issue. We affirm.

Shelby County Court of Appeals 07/23/15
Ede Goza, et al. v. Suntrust Bank
W2014-00635-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal arises from the dismissal of an action challenging the validity of and distribution of assets from a trust. The trial court held the suit was barred by the doctrine of res judicata. Because the plaintiffs in this action are in privity with previous challengers of the trust for purposes of res judicata, we affirm the dismissal.

Shelby County Court of Appeals 07/22/15
Stacy Foster-Henderson v. Memphis Health Center, Inc.
W2013-02834-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal involves a contract for employment entitling the employee to sixty days advance notice of the employer’s decision to terminate the contract and six months additional salary from the date of the termination. The employer argued that the termination was effective in May 2005 and, therefore, that the employee had been fully compensated pursuant to the contract. The trial court ruled that the termination occurred in June 2005 and awarded employee damages equivalent to two months’ salary. We conclude that the evidence preponderates in favor of finding that the employee did not receive the requisite notice of the termination of her employment until September or October 2005 at the earliest. Accordingly, we reverse the judgment of the trial court and award employee damages equivalent to six months’ salary, as well as partial prejudgment interest. Reversed and remanded.

Shelby County Court of Appeals 07/22/15
Barbara A. Miller v. Myron B. McClary, II
E2015-01027-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: David Reed Duggan

The final order from which the pro se appellant seeks to appeal was entered on April 20, 2015. The Notice of Appeal was not filed until May 22, 2015, more than thirty (30) days from the date of entry of the final order. The appellees have filed a joint motion to dismiss this appeal based upon the untimely filing of the Notice of Appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and grant the motion to dismiss.

Blount County Court of Appeals 07/22/15
Haddad Family Partnership v. David Pouncey, et al.
W2014-01761-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Senior Judge Don R. Ash

This case involves a dispute over the boundary line between two neighboring tracts of farmland. The owner of one farm brought this action alleging that the neighbor crossed the common boundary line between the tracts and harvested or destroyed crops during three consecutive years. At trial, the parties presented conflicting surveys, each purporting to establish the correct boundary line between the properties at issue. The trial court found the appellee’s survey to be more persuasive and established the line as proposed by the appellee. The trial court also awarded damages to the appellee for the lost crops. Because the evidence does not preponderate against the trial court’s findings, we affirm and remand for further proceedings.

Tipton County Court of Appeals 07/21/15
Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips, Deceased v. Gary Q. Casey, M.D., et al.
E2014-01563-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge E. G. Moody

This is a health care liability action. The plaintiff's late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband's death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.

Sullivan County Court of Appeals 07/21/15
Jeffery G. Douglas v. Jackson Police Department
W2014-02076-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Nathan B. Pride

Plaintiff/Appellant appeals the trial court’s order dismissing his claim under the Equal Protection Clause. Appeal dismissed for failure to comply with Rule 27 of the Rules of Appellate Procedure.

Madison County Court of Appeals 07/20/15
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr. PARTIAL DISSENT
W2014-01095-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald P. Harris

J. STEVEN STAFFORD, Dissenting in Part.
I concur in the majority opinion with regard to all issues save one—the reversal of the attorney fee award to Husband. On this point, I must respectfully file this partial dissent.

Henry County Court of Appeals 07/20/15
Heather Anne Gulish Gladwell v. Tony Neil Gladwell, Jr.
W2014-01095-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald P. Harris

Husband appeals the trial court's division of property, award of rehabilitative alimony, and allocation of the federal tax deduction applicable to the parties' children in this divorce action. Wife also appeals the trial court's property division and additionally appeals its award of attorney's fees as alimony in solido to Husband. We affirm the trial court's property division, award of rehabilitative alimony to Husband, and allocation of the federal tax deduction to Wife. We reverse the award of alimony in solido to Husband. This matter is remanded to the trial court for entry of an order setting Wife's child support obligation in a definite amount as required by Tennessee Code Annotated § 36-5-101(a)(2).

Henry County Court of Appeals 07/20/15
In re Mason M.
M2014-02569-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Stella L. Hargrove

Mother appeals the termination of her parental rights; Father surrendered his parental rights prior to trial. The trial court found that four grounds for termination of Mother’s parental rights had been established. Mother does not challenge any of the grounds for her termination; instead, she contends that the termination was not in the child’s best interests. Finding no error, we affirm.

Lawrence County Court of Appeals 07/17/15
Iris Teresa Bowling Chambers v. Faye Bowling Devore, et al.
W2013-02827-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion. Appellee, Appellant’s law firm, filed an attorney’s lien against real property that was awarded to Appellant by partition in the underlying case. The trial court set the amount of the lien based on the commissioners’ valuation of the real property. Appellant disputed the amount of attorney’s fees by filing a motion to compel arbitration, in which she specifically argued that, under their contract, the parties were required to arbitrate any dispute concerning the amount of attorney’s fees. The trial court did not specifically rule on Appellant’s motion to compel arbitration, but inferentially denied the motion when it granted Appellee’s motion to sell the property to satisfy the previously granted attorney’s lien. Appellant then filed a Rule 60.02 motion for relief from the order enforcing the attorney’s lien. Her motion was denied, and she appeals. Although the attorney’s lien is valid, we conclude that the trial court erred in enforcing the lien as a judgment when there was a dispute concerning the enforceability of the parties’ contract, the amount of attorney’s fees, and the proper means of calculating those fees. Accordingly, we vacate the order enforcing the attorney’s lien in the amount awarded and remand the case for an evidentiary hearing to resolve the questions concerning the parties’ contract and to determine the proper amount of attorney’s fees, which may then be enforced against the lien. Vacated and remanded.

Fayette County Court of Appeals 07/17/15
In re Sonya M.
M2015-00064-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Burch

The issue in this case is whether former foster parents have standing to bring an action for termination of parental rights and adoption of children formerly in their care. We hold, as did the trial court, that former foster parents do not have standing to do so.

Dickson County Court of Appeals 07/16/15
Timothy John McCormick v. Stephanie Renee Crouch McCormick
M2014-00457-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

Husband in divorce action appeals trial court’s division of marital property and award of alimony in futuro to Wife. We affirm the trial court’s division of marital property; we vacate the award of alimony in futuro and remand to the trial court for reconsideration.

Warren County Court of Appeals 07/16/15
Michael J. Karel, et al. v. William Steven Cummings, et al.
W2014-01063-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Martha Brasfield

Because the order appealed is not a final judgment, we dismiss this appeal for lack of subject matter jurisdiction.

Tipton County Court of Appeals 07/16/15
In re Marcell W. Concur
W2014-02120-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

I concur in the majority's conclusion that clear and convincing evidence exists to support the trial court's finding that Mother committed severe abuse. I write separately, however, to respond to the relevance of my good friend and colleague's discussion of Mother's waiver of her challenge to the Special Judge's appointment in the juvenile court. The opinion states that because Mother did not raise her objection to the appointment of the Special Judge in the juvenile court, the issue is deemed waived. In support of this position, the opinion relies, in part, on this Court's decision in State Department of Children’s Services v. A.M.H., 198 S.W.3d 757 (Tenn. Ct. App. 2006). In the A.M.H. decision, this Court held that the failure to object to the appointment of a special judge results in a waiver of the issue on appeal. Id. at 764. I believe, to avoid confusion, the relevance of A.M.H. to the facts of this case requires clarification.

Shelby County Court of Appeals 07/16/15
In re Marcell W.
W2014-02120-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

This appeal results from a dependency and neglect action initiated in the Shelby County Juvenile Court. The juvenile court found that the child was dependent and neglected. The juvenile court also found that the child's severe injuries constituted severe child abuse perpetrated by the child's mother. On appeal, the circuit court affirmed. Discerning no error, we also affirm.

Shelby County Court of Appeals 07/16/15
Larry Todd Hoover v. Morgan Siera Hoover
E2014-01629-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William R. Brewer

This post-divorce appeal presents the issue of whether the trial court erred in its modification of the parties' permanent parenting plan. The parties were married on March 28, 2009, with one child subsequently born of the marriage. The parties were divorced by final judgment dated August 25, 2011. The trial court concomitantly entered a permanent parenting plan, naming the mother primary residential parent and granting the father co-parenting time of 105 days per year with the child. Approximately eight months later, the father filed a motion seeking modification of the parties' permanent parenting plan, alleging that he had been exercising and should have been awarded at least fifty-percent co-parenting time with the child. Following a hearing conducted on July 31, 2013, the trial court temporarily modified the co-parenting schedule to award each parent equal time with the child. The court reserved the issue of a permanent residential schedule for further hearing. At a subsequent hearing conducted on June 24, 2014, the trial court considered a modification to the permanent parenting plan due to the child's having reached kindergarten age. Upon hearing proof regarding the child's best interest, the trial court entered an order maintaining the mother's status as primary residential parent and awarding the father 105 days of co-parenting time per year. Father timely appealed. Discerning no error, we affirm.

Blount County Court of Appeals 07/16/15
Randy R. Moss, Jr. v. Dan P. Evans et al.
E2014-02277-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jeffrey M. Atherton

This appeal arises from an election contest. Randy R. Moss, Jr. (“Moss”) ran against Dan P. Evans (“Evans”) for the office of Chief Administrative Officer of the McMinn County Highway Department (“Highway Commissioner”). Evans won. Moss filed an election contest in the Chancery Court for McMinn County (“the Trial Court”) challenging Evans' statutorily required qualifications to hold the office. Moss also sued the McMinn County Election Commission and its officials (“the Election Commission,” collectively) in the same action. Evans and the Election Commission filed motions to dismiss. The Trial Court granted the motions to dismiss, holding that Moss was required to have challenged Evans' certification as a qualified candidate before the Tennessee Highway Officials Certification Board (“the THOCB”) and that Moss could not now challenge Evans' qualifications by an election contest. Moss filed this appeal. We affirm the Trial Court in its dismissing the complaint against the Election Commission, which acted only in a ministerial capacity. We hold, however, that the Trial Court erred in concluding that it had no jurisdiction to hear Moss's challenge to Evans' qualifications. We affirm, in part, and, reverse, in part, the judgment of the Trial Court, and remand this case to proceed against defendant Evans.

McMinn County Court of Appeals 07/16/15
Kathryne B.F. v. Michael David B.
W2014-01863-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Karen R. Williams

This appeal arises from post-divorce proceedings. When the parties divorced in 2008, Mother was designated primary residential parent of the parties' one-year-old son. Mother later remarried and sought permission to relocate to Australia with the child. Following a hearing in 2011, the trial court denied Mother's request to relocate and changed the designation of primary residential parent to Father. Mother moved to Australia with her new husband. Mother instituted this proceeding in 2013, alleging that a material change in circumstance has occurred and that it is in the child's best interest to live with her in Australia. The trial court considered testimony over the course of four days and eventually dismissed Mother's petition. In a previous appeal, this Court remanded the matter for specific findings of fact and conclusions of law. The trial court subsequently entered a lengthy written order explaining its decision. Mother filed a second notice of appeal. We affirm in part and reverse in part.

Shelby County Court of Appeals 07/16/15
Anil Construction Inc. v. Patrick D. McCollum, et al.
W2014-01979-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William B. Acree

This is the second appeal of a case involving the alleged breach of a construction contract. The plaintiff general contractor hired the defendant subcontractor to build and install cabinetry for a movie theater. The subcontract provided that the work should be completed by the date the theater was scheduled to open. However, at the theater‘s opening, several items remained unfinished. The general contractor refused to pay despite the subcontractor‘s demand for payment. The general contractor filed suit alleging breach of contract for failure to complete the project in a timely manner and for defective work. The subcontractor counterclaimed for breach of contract for failure to pay under the contract. After a bench trial, the trial court found in favor of the subcontractor and awarded damages. The general contractor now appeals. Discerning no error, we affirm.

Madison County Court of Appeals 07/15/15